When the law names the decision-maker, you cannot sideline that authority through a public procurement procedure
The Council of State suspends RTBF's award for appointing its statutory auditor because the law explicitly assigns that competence to the French Community government — and a purely formal post-hoc approval cannot replace that government's actual decision.
What happened?
In July 2023, RTBF (the Belgian French-speaking public broadcaster) launched a negotiated procedure with prior publication to appoint a statutory auditor for the 2023-2025 financial years. Two award criteria: price (60 points) and team (40 points). Two bidders submitted offers: Callens, Vandelanotte & Theunissen (CVT) and RSM Interaudit. The score gap was tiny: RSM 96.21 versus CVT 96.00. On 13 October 2023, RTBF's director-general awarded the contract to RSM for €158,400 excl. VAT (€191,664 incl. VAT) over three years. But the problem ran deeper than 0.21 points. The 9 January 2003 decree on transparency and autonomy of public bodies of the French Community states in Article 45 that 'commissioners of accounts are designated by the Government' — not by the organisation itself. Article 52 adds: 'The Government determines the means of action and indemnities granted to commissioners of accounts.' The Council of State auditor raised this competence issue ex officio. RTBF and the French Community defended themselves by saying the Government had formally approved on 9 November 2023. But the documents told another story: the minutes of RTBF's 20 October 2023 board meeting record that government commissioners themselves described the Government's intervention as 'a purely formal step', and the briefing note to the Government of 23 October 2023 explicitly proposes 'proceeding with the formal designation'. The Council of State held that the legislature gave the Government full discretionary power, not just a verification role — and that is incompatible with a procedure where the controlled organisation itself drafts the specifications, evaluates the offers, and decides on the award. The plea was held to be serious. Suspension granted.
Why does this matter?
If you run procurements within autonomous public bodies: not every appointment you operationally need can be handled through your own marché public. Where the organic statute or decree explicitly assigns the appointment to a supervising authority (government, council, supervising minister), that's not a detail. A purely formal post-hoc approval is insufficient to respect that statutory competence. For bidders: this case opens an unexpected route. An ex officio plea can topple a procedure on a ground you never raised yourself. If you bid for an external control role (auditor, commissioner) at a public body and lose, it pays to check the competence structure: who was statutorily the decision-maker?
The lesson
If you launch a procurement for a position whose appointment is statutorily entrusted to a higher authority, you cannot first run the marché public and then have the government or supervisor merely 'take note'. The appointment power must actually be exercised — not pro forma after a decision has already been made. Check up front: under the organic text (decree, statute, articles of association), who is competent to appoint this person or firm? If it's an external authority, run the marché public on behalf of or under the supervision of that authority — not in your own name.
Ask yourself
Upcoming appointment (statutory auditor, commissioner, external auditor, government commissioner) at a public body: does the founding decree or organic statute identify who has the appointment competence? If it's the government or supervisor and not your own body, who is running the marché public? Is the file being prepared for a genuine review, or do the minutes already say 'for formal designation'?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →